Preview
FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
Supreme Court of the State of New York
County of Richmond
----------------------------------------------------X
Susan Miskin
Plaintiff,
AFFIRMATION IN
OPPOSITION
-against-
Index #:
City of New York, 152774/2017
Defendant.
---------------------------------------------------X
Martin Rubenstein an attorney admitted to practice law before the Courts of the State of
New York affirms the truth of the following under the penalties of perjury:
I am an attorney associated in representing the plaintiff and as such I am fully familiar
with the facts and circumstances set forth herein.
I make this affirmation in opposition to the defendant's motion to dismiss.
An Order to Show Cause for leave to serve a late Notice of Claim was served upon the
defendant on December 26, 2017.
This action was commenced on December 28, 2017. By paragraph 12 of the Complaint it
was noted that an Order to Show Cause permitting and allowing the service of the late notice of
claim was signed by the Court and served together with the Notice of Claim.
Thereafter on February 1, 2018 plaintiff served a Notice for Discovery and Inspection for
disclosure of documents that were material and necessary to the evaluation of the late notice of
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claim application. This was returnable February 28, 2018. Defendant did not provide the
disclosure called for by plaintiff's Notice for Discovery and Inspection (Exhibit "A").
On March 20, 2018 the court denied plaintiff's late Notice of Claim application.
It isinequitable for the Court to dismiss this action as to the defendant without requiring
the defendant to reply to the Notice for Discovery and Inspection.
As the plaintiff has filed a Notice of Appeal for review of the Order, the time to move to
renew or reargue remains open. Defendant should be required to reply to plaintiff's Notice for
Discovery and Inspection before the Court considers dismissal of the Complaint.
If the City's disclosure establishes that the City did have notice of the essential facts of
this case, did have knowledge of the plaintiff's injuries and the negligence alleged, and that itdid
investigate the case, is in possession of inspection reports, photographs, a report of the claim
from the contractor and/or itsinsurer, putting the City on notice, reconsideration of the denial of
late claim, would probably result in allowing the late claim.
WHEREFORE, itis respectfully requested that defendant's, City of New York's motion
be denied.
artin Rubenstein
10'
Affirmed the day of May, 2018
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Supreme Court of the State of New York
County of Richmond
----------------------------------------------------X
Susan Miskin
Plaintiff,
NOTICE FOR
DISCOVERY &
-against- INSPECTION
Index #:
City of New York, 152774/2017
Defendant.
---------------------------------------------------X
Counselors:
PLEASE TAKE NOTICE, that the plaintiff demands that the defendant produce the
following for discovery and inspection:
1.Report received by the Comptroller of the City of New York with respect to occurrence
involving Susan Miskin which occurred on October 6, 2016.
2.Copy of report of occurrence involving Susan Miskin made to the Corporation Counsel
of the City of New York concerning the occurrence of Susan Miskin having taking place on
October 6, 2016.
3.Copy of all inspection reports for inspections done by and or on behalf of the City of
New York including the New York City Department of Design and Construction for work
performed under contract number project id: HW2CR15A including work performed by Restani
Construction Corp., on Manor Road between Brielle Avenue and Meisner Avenue, Staten Island,
New York, including for work performed by Restani Construction Corp. including but not
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limited to milling work performed on or about September 9, 2016, September 12, 2016 and
September 13, 2016.
4.All records of the City of New York including those made on or by or on behalf of the
City of New York including Department of Transportation, and/or Department of Design and
Construction and any other City Agencies concerning work done by Restani Construction Corp.
on and prior to October 6, 2016 on Manor Road between Brielle and Meisner Avenue.
5.All records of paying work done by New York City Department of Transportation, or
any other agency of the City of New York and/or a Contractor, for Manor Road, between Manor
Road and Meisner Avenue, Staten Island, New York, believed to have been performed on or
about September 28, 2016.
6.Indemnificaton of all employees, include the name, and if not still employed, the last
known address, of those involved in the paying work, cleaning the completed paved roadway,
and inspections for Manor Road between Brielle and Meisner Avenues, Staten Island New York
for work done on or about September 28, 2016.
6.True copy of any inspection report concerning the paying work done by or on behalf of
the City of New York on Manor Road, between Brielle Avenue and Meisner Avenue on or prior
to October 6, 2016 (paving believed to have been done on or about September 28, 2016).
7.Work progress records for all City work done by the City or on behalf of the City on
Manor Road between Brielle and Meisner Avenues, Staten Island, New York.
8.Photographs of the work performed by Restani Construction Corp. in possession of the
defendant City and/or a Contractor employed by City, photographs of the paying work in
progress and when completed, copy of any inspection report performed at the roadway of Manor
Road, between Brielle Avenue and Meisner Avenue, Staten Island, New York taken on or prior
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to October 6, 2016 including the period September 9, 2016 to October 6, 2016 and between
September 28, 2016 and October 6, 2016.
9.Names and addresses of all witnesses to the condition of the roadway of Manor Road,
between Brielle and Meisner Avenue, Staten Island, New York, from the point that milling
began on or about September 9, 2016 up through October 6, 2016 at approximately 2:30 pm
(date and time of occurrence).
10.Name and address of any witness to occurrence.
11.Video or still depiction of plaintiff.
12.Video showing Manor Road between Brielle and Meisner Avenue, Staten Island, New
York taken from the beginning of milling work on or about September 9, 2016 up through and
inclusive of October 6, 2016 including video and the exterior of Susan Wagner High School
showing the milling work, completion of milling work, any inspections performed, paying work,
completion of paying work, condition of the roadway, any video showing the plaintiff.
13.Statement of Plaintiff: Accident / incident report
14.Expert Disclosure Pursuant to CPLR 3101(d)
15.Insurance Disclosure, and if none, a statement that insurance is not applicable
16.All contracts, documents reports or correspondence, including emails and messaging
with or concerning Restani Construction Corp for work performed on Manor Road between
Brielle and Meisner Avenue, Staten Island, New York, for milling work believed to be
performed in September, 2016.
17.Copies of all documents by and between City of New York and Restani Construction
Corp. dealing with the work on Manor Road between Meisner Avenue and Brielle Avenue,
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NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
Staten Island, New York for September 2016 from the start of milling work inclusive of the
contract up through and including October 6, 2016.
18.Copy of City of New York paying procedures in effect on or about and prior to
September 28, 2016, applicable to paying of Manor Road, Staten Island, New York believed to
have been performed on September 28, 2016.
19.If a contractor was employed to perform the paving on Manor Road between Brielle
and Meisner Avenues, Staten Island, New York done in September, 2016 identify the contractors
by name and address.
20.Copies of any complaints and/or Notices of Claim filed with the City of New York
concerning the roadway on Manor Road between Meisner Avenue and Brielle Avenue, Staten
Island, New York, received on September 9, 2016 from the time that milling work began upon
information and belief on September 9, 2016 up through October 6, 2016.
PLEASE TAKE FURTHER NOTICE, that discovery and inspection shall be atthe office
2 o
of the undersigned on the day of Fd sw y
, 2016 at 10:00 am or may be complied
with by mailing compliance or prior to that date.
Dated: Staten Island, New York
January3, 2018
Y urs, etc.
, Martin Rubenstein
Howard M. File, Esq., P.C.
Attorneys for Plaintiffs
260 Christopher Lane
Suite 102
Staten Island, NY 10314
718-494-8800
TO: Corporation Counsel
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NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
CITY OFNEW YORK
100 Church Street
New York, New York 10007
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(
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK }
}ss.
COUNTY OF RICHMOND }
Janette Cardone being duly sworn, deposes and says that I am
not a party of the action herein, and that I am over 18 years of
age, and I reside in Richmond County c/o 260 Christopher Lane,
Suite 102, in the State of New York.
On Janua r 11, 2018, I served a true copy of the annexed
NOTICE FOR DISCOVERY AND INSPECTION
By NYSCEF ECF and by mailing the same in a sealed envelope, with
postage prepaid thereon, certified mail return receipt requested,
in a post office or official depository of the U.S. Postal Service
within the State of New York, addressed to the last known address
of the addressee as indicated below:
TO: CORPORATIONCOUNSEL
CITYOFNEWYORK
100Church Street
NewYork,NewYork 10007
Jañette Cardone
Sworn to before me
ThG 1st day of /Fe uary, 2018
",i
6 1 z.
DIANE V. FIRSCHING
Notary Public,Stateof New Yo
No. 01FI4514169
Qualifiedin Richmond County
Cf&wrt(ssionExpiresAugust 31, 20
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NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
Index No.: 152774/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
.. . ... .
. ........ ...- -
SUSAN MISKIN,
Plaintiff,
-against-
aga3.xls t-
CITY OF NEW YORK, r
Defendants .
NOTICE FOR DISCOVERY AND INSPECTION
I
L
HOWARD M. FILE, ESQ., P.C.
MARTIN RUBENSTEIN, ESQ.
Attorneys for PLAINTIFF
260 Christopher Lane
Suite 102
Staten Island, New York 10314
I
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NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK }
} s s.
COUNTY OF RICHMOND }
Janette Cardone being duly sworn, deposes and says that I am
not a party of the action herein, and that I am over 18 years of
age, and I reside in Richmond County c/o 260 Christopher Lane,
Suite 102, in the State of New York.
On May 10, 2018, I served a true copy of the annexed
AFFIRMATION IN OPPOSITION TO
DEFENDANT'S MOTION TO DISMISS
By NYSCEF ECF and by mailing the same in a sealed envelope, with
postage prepaid thereon, certified mail return receipt requested,
in a post office or official depository of the U.S. Postal Service
within the State of New York, addressed to the last known address
of the addressee as indicated below:
TO: ZACHARY W. CARTER
CORPORATION COUNSEL
CITY OF NEW YORK
4th
60 Bay Street, FlOOr
New YOrk, New YOrk 10301
J ne te Cardone
Sworn to before me
T is 10TH day of May, 2018
Nõtary Publj
:t
MARTIN J. RUBENSTEtN
ry P of ½w
x:. State York
m. 43-028U6034601
Or½vd in Rehrnord Cu
~~~~ Sa ~ioiiW
Z Z+
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FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018
Index No.: 152774i2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
SUSAN MISKIN,
Plaintiff,
-against-
CITY OF NEW YORK,
DEFENDANT. .
AFFIRMATION IN OPPOSITION TO
DEFENDANT'S MOTION TO DISMISS
HOWARD M. FILE, ESQ., P.C.
MARTIN RUBENSTEIN, ESQ.
Attorneys for PLANTIFF
260 Christopher Lane
Suite 102
Island;- York-
Staten Rem 10344
718-494-8800
12 of 12
Preview
FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 Supreme Court of the State of New York County of Richmond ----------------------------------------------------X Susan Miskin Plaintiff, AFFIRMATION IN OPPOSITION -against- Index #: City of New York, 152774/2017 Defendant. ---------------------------------------------------X Martin Rubenstein an attorney admitted to practice law before the Courts of the State of New York affirms the truth of the following under the penalties of perjury: I am an attorney associated in representing the plaintiff and as such I am fully familiar with the facts and circumstances set forth herein. I make this affirmation in opposition to the defendant's motion to dismiss. An Order to Show Cause for leave to serve a late Notice of Claim was served upon the defendant on December 26, 2017. This action was commenced on December 28, 2017. By paragraph 12 of the Complaint it was noted that an Order to Show Cause permitting and allowing the service of the late notice of claim was signed by the Court and served together with the Notice of Claim. Thereafter on February 1, 2018 plaintiff served a Notice for Discovery and Inspection for disclosure of documents that were material and necessary to the evaluation of the late notice of 1 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 claim application. This was returnable February 28, 2018. Defendant did not provide the disclosure called for by plaintiff's Notice for Discovery and Inspection (Exhibit "A"). On March 20, 2018 the court denied plaintiff's late Notice of Claim application. It isinequitable for the Court to dismiss this action as to the defendant without requiring the defendant to reply to the Notice for Discovery and Inspection. As the plaintiff has filed a Notice of Appeal for review of the Order, the time to move to renew or reargue remains open. Defendant should be required to reply to plaintiff's Notice for Discovery and Inspection before the Court considers dismissal of the Complaint. If the City's disclosure establishes that the City did have notice of the essential facts of this case, did have knowledge of the plaintiff's injuries and the negligence alleged, and that itdid investigate the case, is in possession of inspection reports, photographs, a report of the claim from the contractor and/or itsinsurer, putting the City on notice, reconsideration of the denial of late claim, would probably result in allowing the late claim. WHEREFORE, itis respectfully requested that defendant's, City of New York's motion be denied. artin Rubenstein 10' Affirmed the day of May, 2018 2 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 3 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 Supreme Court of the State of New York County of Richmond ----------------------------------------------------X Susan Miskin Plaintiff, NOTICE FOR DISCOVERY & -against- INSPECTION Index #: City of New York, 152774/2017 Defendant. ---------------------------------------------------X Counselors: PLEASE TAKE NOTICE, that the plaintiff demands that the defendant produce the following for discovery and inspection: 1.Report received by the Comptroller of the City of New York with respect to occurrence involving Susan Miskin which occurred on October 6, 2016. 2.Copy of report of occurrence involving Susan Miskin made to the Corporation Counsel of the City of New York concerning the occurrence of Susan Miskin having taking place on October 6, 2016. 3.Copy of all inspection reports for inspections done by and or on behalf of the City of New York including the New York City Department of Design and Construction for work performed under contract number project id: HW2CR15A including work performed by Restani Construction Corp., on Manor Road between Brielle Avenue and Meisner Avenue, Staten Island, New York, including for work performed by Restani Construction Corp. including but not 4 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 limited to milling work performed on or about September 9, 2016, September 12, 2016 and September 13, 2016. 4.All records of the City of New York including those made on or by or on behalf of the City of New York including Department of Transportation, and/or Department of Design and Construction and any other City Agencies concerning work done by Restani Construction Corp. on and prior to October 6, 2016 on Manor Road between Brielle and Meisner Avenue. 5.All records of paying work done by New York City Department of Transportation, or any other agency of the City of New York and/or a Contractor, for Manor Road, between Manor Road and Meisner Avenue, Staten Island, New York, believed to have been performed on or about September 28, 2016. 6.Indemnificaton of all employees, include the name, and if not still employed, the last known address, of those involved in the paying work, cleaning the completed paved roadway, and inspections for Manor Road between Brielle and Meisner Avenues, Staten Island New York for work done on or about September 28, 2016. 6.True copy of any inspection report concerning the paying work done by or on behalf of the City of New York on Manor Road, between Brielle Avenue and Meisner Avenue on or prior to October 6, 2016 (paving believed to have been done on or about September 28, 2016). 7.Work progress records for all City work done by the City or on behalf of the City on Manor Road between Brielle and Meisner Avenues, Staten Island, New York. 8.Photographs of the work performed by Restani Construction Corp. in possession of the defendant City and/or a Contractor employed by City, photographs of the paying work in progress and when completed, copy of any inspection report performed at the roadway of Manor Road, between Brielle Avenue and Meisner Avenue, Staten Island, New York taken on or prior 5 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 to October 6, 2016 including the period September 9, 2016 to October 6, 2016 and between September 28, 2016 and October 6, 2016. 9.Names and addresses of all witnesses to the condition of the roadway of Manor Road, between Brielle and Meisner Avenue, Staten Island, New York, from the point that milling began on or about September 9, 2016 up through October 6, 2016 at approximately 2:30 pm (date and time of occurrence). 10.Name and address of any witness to occurrence. 11.Video or still depiction of plaintiff. 12.Video showing Manor Road between Brielle and Meisner Avenue, Staten Island, New York taken from the beginning of milling work on or about September 9, 2016 up through and inclusive of October 6, 2016 including video and the exterior of Susan Wagner High School showing the milling work, completion of milling work, any inspections performed, paying work, completion of paying work, condition of the roadway, any video showing the plaintiff. 13.Statement of Plaintiff: Accident / incident report 14.Expert Disclosure Pursuant to CPLR 3101(d) 15.Insurance Disclosure, and if none, a statement that insurance is not applicable 16.All contracts, documents reports or correspondence, including emails and messaging with or concerning Restani Construction Corp for work performed on Manor Road between Brielle and Meisner Avenue, Staten Island, New York, for milling work believed to be performed in September, 2016. 17.Copies of all documents by and between City of New York and Restani Construction Corp. dealing with the work on Manor Road between Meisner Avenue and Brielle Avenue, 6 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 Staten Island, New York for September 2016 from the start of milling work inclusive of the contract up through and including October 6, 2016. 18.Copy of City of New York paying procedures in effect on or about and prior to September 28, 2016, applicable to paying of Manor Road, Staten Island, New York believed to have been performed on September 28, 2016. 19.If a contractor was employed to perform the paving on Manor Road between Brielle and Meisner Avenues, Staten Island, New York done in September, 2016 identify the contractors by name and address. 20.Copies of any complaints and/or Notices of Claim filed with the City of New York concerning the roadway on Manor Road between Meisner Avenue and Brielle Avenue, Staten Island, New York, received on September 9, 2016 from the time that milling work began upon information and belief on September 9, 2016 up through October 6, 2016. PLEASE TAKE FURTHER NOTICE, that discovery and inspection shall be atthe office 2 o of the undersigned on the day of Fd sw y , 2016 at 10:00 am or may be complied with by mailing compliance or prior to that date. Dated: Staten Island, New York January3, 2018 Y urs, etc. , Martin Rubenstein Howard M. File, Esq., P.C. Attorneys for Plaintiffs 260 Christopher Lane Suite 102 Staten Island, NY 10314 718-494-8800 TO: Corporation Counsel 7 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 CITY OFNEW YORK 100 Church Street New York, New York 10007 8 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 ( NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK } }ss. COUNTY OF RICHMOND } Janette Cardone being duly sworn, deposes and says that I am not a party of the action herein, and that I am over 18 years of age, and I reside in Richmond County c/o 260 Christopher Lane, Suite 102, in the State of New York. On Janua r 11, 2018, I served a true copy of the annexed NOTICE FOR DISCOVERY AND INSPECTION By NYSCEF ECF and by mailing the same in a sealed envelope, with postage prepaid thereon, certified mail return receipt requested, in a post office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee as indicated below: TO: CORPORATIONCOUNSEL CITYOFNEWYORK 100Church Street NewYork,NewYork 10007 Jañette Cardone Sworn to before me ThG 1st day of /Fe uary, 2018 ",i 6 1 z. DIANE V. FIRSCHING Notary Public,Stateof New Yo No. 01FI4514169 Qualifiedin Richmond County Cf&wrt(ssionExpiresAugust 31, 20 9 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 Index No.: 152774/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND .. . ... . . ........ ...- - SUSAN MISKIN, Plaintiff, -against- aga3.xls t- CITY OF NEW YORK, r Defendants . NOTICE FOR DISCOVERY AND INSPECTION I L HOWARD M. FILE, ESQ., P.C. MARTIN RUBENSTEIN, ESQ. Attorneys for PLAINTIFF 260 Christopher Lane Suite 102 Staten Island, New York 10314 I 10 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK } } s s. COUNTY OF RICHMOND } Janette Cardone being duly sworn, deposes and says that I am not a party of the action herein, and that I am over 18 years of age, and I reside in Richmond County c/o 260 Christopher Lane, Suite 102, in the State of New York. On May 10, 2018, I served a true copy of the annexed AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS By NYSCEF ECF and by mailing the same in a sealed envelope, with postage prepaid thereon, certified mail return receipt requested, in a post office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee as indicated below: TO: ZACHARY W. CARTER CORPORATION COUNSEL CITY OF NEW YORK 4th 60 Bay Street, FlOOr New YOrk, New YOrk 10301 J ne te Cardone Sworn to before me T is 10TH day of May, 2018 Nõtary Publj :t MARTIN J. RUBENSTEtN ry P of ½w x:. State York m. 43-028U6034601 Or½vd in Rehrnord Cu ~~~~ Sa ~ioiiW Z Z+ 11 of 12 FILED: RICHMOND COUNTY CLERK 05/10/2018 03:33 PM INDEX NO. 152774/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/10/2018 Index No.: 152774i2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND SUSAN MISKIN, Plaintiff, -against- CITY OF NEW YORK, DEFENDANT. . AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS HOWARD M. FILE, ESQ., P.C. MARTIN RUBENSTEIN, ESQ. Attorneys for PLANTIFF 260 Christopher Lane Suite 102 Island;- York- Staten Rem 10344 718-494-8800 12 of 12